7/06/2010 @ 11:43AM

Court Wrong On The Chicago Gun Case

Most discussions of constitutional rights naturally turn on the content of the protected right, whether it pertains to speech, religion, property, contract–or guns. The genius of the American Constitution lies in specifying a sound list of rights to protect against government interference

This celebration of individual rights should not conceal, however, this second question in a federal system: Against which government, national or state, are these right secured? This “incorporation” issue came to the fore in the Supreme Court’s hotly contested decision in McDonald v. City of Chicago, By a 5-to-4 vote the court held that the individual right to “keep and bear” arms for purposes of self-defense established in the Second Amendment was protected against state abrogation. It was a vintage conservative-liberal split.

Count me a “liberal” on this one. McDonald’s misguided conclusion comes at the end of a long and twisted historical odyssey, which has nothing whatsoever to do with the desirability of gun rights. In 1787 the original constitutional explicitly set out powers limits on states’ rights in Article I, section 10, which contains, for example, categorical prohibitions inter alia on the power of the states to enter into treaties with foreign nations, to coin money, to pass ex post facto laws or to pass laws impairing the obligation of contract.

Here the incorporation issue never raises its head because the text of the Constitution, not general political theory, answers the question. The Bill of Rights was adopted in 1791. In light of the explicit limitations on state powers found in Article I, the Supreme Court, prior to the Civil War, held that none of its substantive guarantees bound the states.

In 1868 the Fourteenth Amendment did impose additional limitations on state powers. But how? The obvious vehicle for “incorporating” some portions of the Bill of Rights against the states was the “Privileges or Immunities” clause, which by common understanding protected a wide range of negative liberties held by all U.S. citizens (including the recently freed slaves) against state action. The right to keep and bear arms was not on that historical list. The Privileges or Immunities Clause never could evolve, moreover, because it was gutted by the ill-fated 1873 Slaughter-House Cases, which astonishingly confined privileges or immunities to those rights guaranteed to federal citizens, such as the right to petition Congress or to use interstate rivers.

To evade that roadblock against incorporation, the Court promptly shifted its point of attack to the Due Process Clause: No state shall “deprive any person of life, liberty of property without due process at law.” The initial move with the Due Process Clause did not involve incorporation at all. In an 1897 rate case, Chicago, Burlington & Quincy Railroad v. Chicago, the Supreme Court held that a regulation that denied the railroad a reasonable rate of return on its investment took property without “due process of law,” given that the taking was necessarily “without just compensation”–its supposed equivalent. Procedure and substance were initially intertwined by interpretation, not incorporation.

That soon changed. Without further serious analysis, the Court used the doctrine of “substantive due process” to bind states to the essential guarantees of the Bill of Rights. The list of protected rights grew like Topsy to reach everything from speech and religion in the 1920s and 1930s to criminal law protections of the right to counsel and the right to confront witnesses in the 1960s.

In the middle of this doctrinal mishmash, how should the right to keep and bear arms be treated? Justice Alito, speaking for the majority, probably has the better argument in insisting the right to keep and bear arms was somehow fundamental. But as a matter of original constitutional construction, that careful and exhaustive opinion is off base for other reasons

First, it helps to set out the Second Amendment in full: “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” By way of background, the militia, as a forebear to today’s National Guard, was, and is, a state-run operation designed in 1787 to protect states against invasions from other states and to be available for call-up to the U.S. when needed “to execute the Law of the Union, suppress Insurrections and repel invasions.”

Read in context, the Second Amendment limits the power of the Congress to disarm the state militia by general regulation. Ironically, the only place that this worry does not apply is to the District of Columbia, where there was no state militia to protect or disarm. But Justice Scalia’s upside-down decision Heller v. District of Columbia held that this was the easiest place to apply the Amendment. Since the case was against the federal government, the incorporation doctrine was not in play. Scalia just excised the introductory clauses from the Second Amendment to make it read like some acontextual substantive right. “The right of the people to keep and bear Arms, shall not be infringed.”

Here’s the catch. That right could be no more absolute than any other constitutional right. So it is back to the lower courts to decide in the first instance which restrictions are “reasonable” and which not. The old Chicago gun ordinance may be history, but the mayor is already hatching up lots of new burdens dealing with waiting periods, number of guns allowed per person, requirements for instruction, mandatory insurance and the like. Each of these limitations will require courts to ask which ones are “reasonable” and which ones not.

Get Heller right and the case for incorporation vanishes. There is, quite simply, no good structural reason why the state cannot limit the right to keep and bear arms if the full text of the Second Amendment is in play. After all, the risk of federal domination is gone if the state is sole judge of whether and, if so, how to arm its militia.

Constitutional originalism does not countenance reading a clause out of context by stripping away half its content. There is no need to agree with Chicago’s Mayor Daley’s gun restrictions to protest this peculiar piece of judicial adventurism. To be sure, the police power discussion is part and parcel of constitutional law just about everywhere else. But not with the Second Amendment.

Richard A. Epstein is the Laurence A. Tisch Professor of Law, New York University; the Peter and Kirsten Bedford Senior Fellow, The University of Chicago; and the James Parker Hall Distinguished Service Professor of Law, The University of Chicago.